Racial discrimination and the protection of minorities: recommended governmentactions
James A. Goldston1
Discrimination on grounds of race, color or ethnicity is a violation of human rights, which states have an affirmative obligation to prevent, punish and remedy. Fundamental to the principle of non-discrimination are the rights of members of racial, ethnic and national minorities to equality before the law and the equal protection of the law.
In recent years, government actions have proven insufficient to stem increasing manifestations of racism in many European countries. Troubling signs include the growing prevalence of overtly racist speech by political leaders; the electoral success in some countries by political parties espousing racist attitudes; the continuing systematic discrimination and racially-motivated violence against particularly vulnerable minorities, including the Roma; and the rising incidence of xenophobic behavior, discrimination, and expressions of racism (including racist violence) towards migrants, refugees and asylum seekers.
I will today offer a list of the minimum, fundamental tasks that states can and must undertake in order more effectively to combat racism and racial discrimination. My focus will be on discrimination – that is, acts which impermissibly differentiate between people because of their race, color, or ethnicity - rather than on other manifestations of racist attitudes. It seems to me that the focus of governmental and NGOs efforts should be directed toward discriminatory deeds rather than on the racist thoughts or expressions which underlie them. Our principal goal should be to ensure equal treatment. Nonetheless, in the long run, racial discrimination is linked closely with the perpetuation of racist prejudice, and the former will not be eradicated without the promotion of an ethos of tolerance and diversity. Hence, we cannot overlook racism per se.
In this regard, I wish briefly to touch upon four myths which I think it may be important to address and perhaps dispel if we are to make progress.
The first myth is the myth of abnormality. It holds that racism and racial discrimination are, on the whole, isolated phenomena - troubling deviations from the norm; black spots (if you can excuse the metaphor) on a white canvas. This myth is predicated on the widespread tendency of denial - denial of the prevalence and relentless persistence of racist attitudes and discriminatory trends throughout our societies. This is not a myth unique to Central and Eastern Europe. In the United States, after years of legislation, litigation and protest marches on behalf of civil rights, many Americans have concluded, in essence, that racial discrimination has been abolished, that enough is enough, and it is time to move on. And yet, not surprisingly, racial discrimination continues. Just this year, the United States Department of Justice condemned practices of racial profiling by police officers - the stopping and at times arrest of African-American drivers in such disproportion as to give rise to the suggested crime, "driving while black." In this region as well, acknowledgement of the full extent and pervasiveness of racism and discrimination is often slow in coming. Political leaders who once denied outright the existence of discrimination have been forced to switch ground. Now, racism is admitted, but it is said to be the product of a few violent skinheads or renegade neo-Nazis, not a larger problem of majority society.
The first myth is closely linked to a second, the myth of intentional harm. This myth centers around the meaning of the term "discrimination." Thus, in the popular imagination, "discrimination" is often understood to suggest an intentional, malicious design to harm vulnerable minority victims. But surely this is mistaken. European law makes clear that racial discrimination need not intend harm to its victims - all that is required is a difference of treatment which, absent objective and reasonable justification, disproportionately and negatively impacts racial minorities. To be sure, acts of racially motivated violence and discrimination borne of true racial animus are common in Europe today. But all too often, discrimination is so hard to combat precisely because it is ordinary, run of the mill, routine, and not obviously evil - except to those who suffer its effects.
The third myth is the myth of inevitable victory. This is the Panglossian notion - which plagues many of us - that progress, however slow, is in the long run inevitable - that, however resistant governments may be to change, we will, ultimately, overcome. Such a belief may provide emotional fortification to those fighting uphill battles against powerful forces. In the long run, however, the illusion of certain progress runs the risk of debilitating the movement against racism and discrimination by implying somehow that our efforts are not absolutely necessary, because, no matter what we do, racism will be defeated. The reality, I fear, is far more precarious. Indeed, the struggle against racism and discrimination is not linear, but rather a series of gains and setbacks, whose frequency and severity depend on the will and capacity of people in government and without to press their cause with skill and conviction.
Finally, myth four - the myth of post-Communist exceptionalism, which posits that the countries of Central and Eastern Europe and the former Soviet Union are uniquely plagued by racism and discrimination. Common sense, and a cursory reading of history, suggest that racism is a global phenomenon as to which no country or region enjoys a monopoly. In Europe, racism and discrimination are fiercely present in many Western European countries. But this is often overlooked. A major challenge for anti-discrimination advocates is to find ways to use the lever of European integration to combat discrimination in Central and Eastern Europe without undermining similar goals in EU member states.
With that preface, I wish to turn now to the minimum concrete steps governments must take to comply with their obligations under international law to combat racial/ethnic discrimination and protect the rights of minorities.
I. International commitments
States should sign, ratify, and bring their domestic legislation and practice into compliance with all relevant international instruments providing for equality, non-discrimination, and protection of the rights of minorities, in particular:
- European Union Race Directive - All EU member states have three years to bring their legislation and practice into conformity with Directive 2000/43/EC, "implementing the principle of equal treatment between persons irrespective of racial or ethnic origin," adopted by the Council of the European Union on June 29, 2000. This Directive marks a major advance in European anti-discrimination law, for the first time providing broad legal protection against discrimination on grounds of race or ethnicity. The European Commission has declared that this Directive forms part of the Community "acquis" - the body of law which candidate countries are expected to implement prior to accession.2
- Protocol No. 12 of the European Convention on Human Rights - All Council of Europe member states should ratify Protocol No. 12 to the European Convention on Human Rights, which was opened for signature by the Committee of Ministers on November 4. As the first independent non-discrimination guarantee, the Protocol would expand significantly the protection afforded by Article 14 of the Convention. It will enter into force upon ratification by ten member states. As of early November, the Protocol had been signed, but not ratified, by 25 member states. Among those who had not signed as of that date were Bulgaria, Croatia, Denmark, France, Lithuania, Poland, Slovenia, Spain, Sweden and the United Kingdom.
- Article 14, International Convention on the Elimination of All Forms of Racial Discrimination - All governments which have not yet done so should declare, pursuant to Article 14 of the Convention, that they accept the competence of the United Nations Committee on the Elimination of Racial Discrimination (CERD) to consider communications from individuals and groups concerning violations of the Convention. To date, only 30 states worldwide have rendered this declaration. Among those governments in Europe which have yet to do so are Austria, Belgium, Croatia, Czech Republic, Estonia, Germany, Greece, Ireland, Latvia, Lithuania, Romania, Slovenia and the United Kingdom.
- Framework Convention for the Protection of National Minorities - All states which have not yet done so should ratify without reservations the Framework Convention, which provides protection for members of minority groups. The governments of Belgium, France, Greece, Latvia, Luxembourg, the Netherlands, Poland, and Portugal, among others, have yet to ratify the Framework Convention.
II. Domestic Legislation
Although European constitutions uniformly prohibit discrimination and guarantee equality, many governments have yet to translate these constitutional promises into domestic implementing legislation. At a minimum, states should adopt:
- Comprehensive legislation expressly prohibiting racial discrimination in all spheres of public life, including but not limited to education, employment, health care, housing, social services, and access to citizenship and goods and services, and ensuring adequate, judicially-enforced criminal, civil and administrative sanctions for violations. In this regard, all remedies should be accessible and well-publicized, and legal assistance and appropriate reparation should be available for victims.
- Legislation prohibiting advocacy of racial or ethnic hatred that constitutes incitement to discrimination or violence.
- Legislation mandating sentencing enhancements for offenses motivated by racial/ethnic animus.
- Regulations or other applicable legal norms specifically prohibiting racial discrimination in all activities undertaken and/or funded by the government.
A. Political will
Policies to combat discrimination and promote the rights of minorities must commence with political will at the highest levels of government. Senior officials must acknowledge publicly and often that racism is a pervasive problem for majority society and that discrimination is unacceptable, illegal, and will not be tolerated.
In designing, implementing and evaluating policies to combat and prevent discrimination and to protect the rights of minorities, governments must meaningfully involve members of minority groups at all stages.
C. Enforcement/specialized bodies
States must ensure consistent enforcement of legal standards in the field of non-discrimination and protection of minority rights. Among other things, states must:
- ensure that criminal justice systems effectively combat racial discrimination and that violations of the rights of minorities are speedily and effectively investigated and prosecuted;
- discipline public officers - including police, prosecutors and other investigative authorities - who fail adequately to enforce applicable legal rules;
- promote respect for racial and ethnic diversity in all spheres of public life, including by training public officials (in particular, the police, prosecutors and judges) in the requirements of international and domestic law concerning non-discrimination and the rights of minorities;
- develop avenues for dialogue between law enforcement agencies and members of minority groups;
- ensure that public funds are not provided to private institutions that do not satisfactorily promote non-discrimination and the rights of minorities;
- improve the quality of preventive criminal measures - consistent with international privacy and due process standards - to deter and detect racist acts;
- establish specialized bodies with the competence, capacity, and funding effectively to publicize legal norms related to non-discrimination and the rights of minorities; to collect and publish data concerning incidents of discrimination and racial violence; and to investigate and prosecute violations and to provide legal assistance to victims.
D. Positive action
International law authorizes positive action by states to promote full and effective equality for members of minority groups which have historically suffered systematic discrimination. Among the most important measures which states can take in this regard are:
- recruit, identify and capacitate members of minority groups for public employment, with particular emphasis on the police, prosecutorial corps, the judiciary, the armed forces and the educational sphere;
- ensure that members of minority groups have access to training which meets their specific needs and improves their employability;
- promote the development and adoption of equal opportunity and positive action policies and codes of conduct in public and private workplaces;
- introduce into all public employment contracts clauses prohibiting discrimination or interference with the rights of minorities.
Education is a foundation for the promotion of inter-cultural tolerance, diversity and non-discrimination. In this regard, states should:
- develop and execute education programs for the general public - including use of the mass media - concerning the nature and history of racism against members of minority groups, the contributions of minority cultures, religions and languages, the legal prohibitions against discrimination and interference with the rights of minorities, and the rights of all individuals to legal redress in case of violation;
- provide adequate training for teachers and other educational professionals in multicultural education and the histories and cultures of relevant specific minority groups;
- insure that primary and secondary school curricula and text books adequately reflect the contributions of all minority populations and do not perpetuate racial and ethnic stereotypes;
- eradicate practices that result in the involuntary segregation of minority children in schools, including but not limited to the routing of Romani children to sub-standard special schools for students deemed "mentally deficient";
- commit adequate resources to programs, including pre-school education, to enable minority children to succeed in regular schools;
- permit members of minority groups to set up and manage their own private educational and training establishments;
- afford all members of minority groups traditionally or in substantial numbers inhabiting an area the effective opportunity to be taught their mother tongue and/or to receive instruction in that language;
- ensure that all publicly-awarded and/or -funded media adequately reflect the contributions of members of minority groups, and involve minorities in all stages of production, design and dissemination of programming;
- ensure that members of minority groups are granted the possibility of creating and using their own media.
F. Political participation
States must create conditions to ensure that members of minority groups enjoy full and effective opportunity to participate in public affairs on equal terms, through, inter alia, the following measures:
- assure non-discrimination in the recognition by state authorities of particular groups as a "minority";
- afford members of all minority groups traditionally or in substantial numbers inhabiting an area the effective opportunity to use their mother tongue in dealing with public authorities;
- foster mechanisms which permit members of minority groups to participate in decision-making and advisory bodies of state power, while retaining the right to maintain, if and to such extent as they so wish, their own identity and characteristics;
- ensure non-discrimination in access to citizenship, in particular for long-term residents of successor states who possessed citizenship in the respective predecessor state. In this regard, states must ensure that laws relating to registration of residency do not operate to disenfranchise their citizens or otherwise have a discriminatory effect.
G. Immigration and asylum
In recent years, in the guise of a new "Fortress Europe" which threatens to re-divide the continent, a number of governments have exhibited growing intolerance towards asylum seekers, refugees and migrants. States must resist and reverse this tendency, among other things, by:
- ensuring non-discrimination in access to asylum and in treatment afforded asylum seekers, refugees and migrants by police, immigration and other law enforcement officers;
- securing non-discriminatory access to legal aid for asylum seekers, refugees and migrants;
- affirming that systematic discrimination on grounds of race or ethnicity constitutes persecution for purposes of the 1951 Convention;
- ensuring that distinctions in law between "citizens" and "non-citizens" have neither the intention nor the effect of promoting or reinforcing racial discrimination.
H. Race- and ethnic-coded data
States can hardly comply with international obligations to eradicate discrimination and protect the rights of minorities absent data showing the impact of official policies on members of racial and ethnic minority groups. Efforts to combat discrimination and protect the rights of minorities should be grounded in reliable statistical data and other quantitative information collected, maintained and published in compliance with human rights principles, and protected against abuse for purposes other than combating racial discrimination and protecting the rights of minorities.
States should pay particular attention to and adopt measures which take sufficient account of the unique situation of Roma, Gypsies, Sinti and Travellers, who are particularly disadvantaged, subjected to discrimination and denied redress.
- James A. Goldston is Deputy Director of the Open Society Institute and Senior Legal Counsel of the European Roma Rights Center. This article is the text of a presentation made at the November 2000 Warsaw Preparatory Meeting of NGOs from Central and Eastern Europe and the Former Soviet Union for the World Conference Against Racism, Racial Discrimination, Xenophobia, and Related Intolerance, to be held in South Africa in August-September 2001.
- See Communication on measures to counter racism in the candidate countries (COM(1999)256 final dated May 26, 1999) (“Any legislation to combat discrimination will of course form a part of the Community acquis, and as such, the candidate countries will be required to implement equivalent provisions before accession. This will make a substantial contribution to increasing the protection afforded to the victims of discrimination in the candidate countries”).